Court No. - 79
Case :- APPLICATION U/S 482 No. - 11439 of 2020 Applicant :- Mammon Concast Private Limited And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mahesh Chandra Tiwari,Kiran Tiwari Counsel for Opposite Party :- G.A.
Hon'ble Vivek Varma,J.
Heard learned counsel for the applicant and Sri Vivek Rastogi, learned AGA for the State.
This application u/s 482 Cr.P.C. has been filed to quash the proceeding of complaint Case No. 28 of 2019, Registrar of Companies Vs. Mammon Concast Private Limited and others, u/s 266-F of Companies Act, 1956, P.S. Kamla Nagar, District Agra pending in the court of Special C.J.M., Agra as well as the summoning order dated 20.2.2019.
Learned counsel for the applicants submitted that the impugned summoning order dated 20.02.2019 is a sketchy and cryptic order. He further submits that the court below while summoning the applicants has materially erred and did not follow the dictum of law as propounded by the Hon'ble Supreme Court in various cases that summoning in criminal case is a serious matter and the court below without dwelling into material and visualizing the case on the touch stone of probability should not summon accused person to face criminal trial.
Learned counsel for the applicants has also placed reliance upon the order dated 01.10.2020 passed in Application u/s 482 No. 13895 of 2020 (Mammon Concast Private Limited & 4 others Vs. State of U.P. & another). The said order is extracted below:-
"This application u/s 482 Cr.P.C. has been filed by Mammon Concast Private Limited and others against State of U.P. and Registrar of Companies Uttar Pradesh, Kanpur, with a prayer for quashing entire proceeding of complaint Case No. 12 of 2019, Registrar of Companies Vs. Mammon Concast Private Limited and others, u/s 291(1)(C) of Companies Act, P.S. Kamla Nagar, District Agra, including summoning order dated 27.2.2019 passed by Special C.J.M., Agra, whereby the applicants have been summoned to face trial for the offences punishable u/s 291(1)(C) of Companies Act.
Learned counsel for applicants argued that the impugned summoning order is a sketchy order without specifying names of accused nor offence for which summoning is there, and passed the cursory order as under:
"27.2.2019 Patrawali Pesh Huee. Parivadi May Vidwan Adhivakta Upasthit. Bahas Sangyan Par Suna Evam Patrawali Ka Avlokan Kiya.
Uplabdh Sakshya Ke Aadhar Par Abhiyuktagan Ko Dhara 291(1)(C) Company Act Ke Antargat Talab Kiya Jata Hai. Abhiyuktagan Ko Saman Dinank 11.4.2019 Ke Liye Jari Ho.
Sd/- Illigible.
Vishesh Mukhya Nyayik Magistrate, Agra."
As above, in other cases too summoning order was the same. In Application u/s 482 No. 12066 of 2020, M/s Agrawal Khandelwal and Associates Chartered Accountants Vs. State of U.P. and another, order dated 22.7.2020 was passed by a coordinate Bench of this Court, whereby the impugned summoning order was quashed. Hence this application with above prayer.
Learned AGA has vehemently opposed.
From the very perusal of impugned summoning order it is apparent that the summoning has been made u/s 291(1)(C) of Companies Act but neither the name of the accused has been given nor their parentage has been given nor the specific offence in which they been summoned is given. The complaint was with prayer for summoning accused persons for offences punishable u/s 292(1)(C) of the Companies Act for making defiance of provisions of Section 292(1)(C) of Companies Act and penal clause is there in Companies Act u/s 292(1)(C) for making defiance against the provisions of section 292(1)(C) of the Companies Act regarding financial statement. Hence request was made for making summoning of accused for offences punishable u/s 292(1)(C) of the Act and it was with penal liability u/s 292(1)(C) of the Act, but the Magistrate has summoned u/s 291(1)(C) of the Companies Act without specifying penal provision u/s 292(1)(C) of the Act. Hence it is prima-facie apparent that the Special C.J.M., Agra, was not careful to go through the complaint and relevant penal provision under which punishment was sought. Even names of accused persons with their parentage, who have been summoned, were not given nor contention of complaint is there nor any application of judicial mind is apparent from the impugned order. Hence apparently there is non application of judicial mind by concerned Special C.J.M., Agra, in passing the impugned summoning order. Hence this application merits to be allowed.
Accordingly, this application is being allowed and the impugned summoning order dated 27.2.2019 is being quashed with a direction to the court of Special C.J.M., Agra, to pass a judicial order in the matter.
This order be communicated to District & Sessions Judge, Agra, for ensuring that no such sketchy order is passed by any Judicial Magistrate. Rather Judicial Magistrate is to pass a judicial order."
He submits that since in the present case also, there is non application of mind by the concerned Magistrate, the present matter may also be remitted back to the learned Magistrate to pass a fresh order in accordance with law.
Learned AGA who has accepted notice on behalf of the State opposed the aforesaid submission as advanced by learned counsel for the applicants but does not dispute that the impugned summoning order dated 20.02.2019 is a cryptic order. He submitted that the matter may be remitted back to the learned Magistrate for fresh consideration.
A perusal of the impugned summoning order dated 20.02.2019 that the same is indeed cryptic and does not stand the test of law as laid down by the Hon'ble Supreme Court in the case of Pepsi Foods Ltd. and another Vs. Special Judicial Magistrate and others reported in 1998 (5) SCC 749. Hence, this application merits to be allowed.
Accordingly, this application is allowed. The impugned summoning order dated 20.02.2019 is quashed. The learned Magistrate is directed to pass a fresh order on the complaint, after applying his judicial mind within a period of 30 days from today.
Office is directed to communicate this order to the court concerned for ensuring compliance of this order forthwith.
Order Date :- 6.1.2021 Lbm/-